United States District Court, E.D. Virginia, Alexandria Division
ERNESTO M. DIAZ, et al., Plaintiffs,
RODNEY L. NAYLOR, Defendant.
REPORT AND RECOMMENDATION
THERESA CARROLL BUCHANAN UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Plaintiffs' Motion for
Entry of Default Judgment (Dkt. 7). After representatives for
Defendant failed to respond to Plaintiffs' motion or to
appear at the hearing on January 4, 2019, the matter was
taken under advisement. For the reasons stated below, the
undersigned U.S. Magistrate Judge recommends that
Plaintiffs' Motion for Default Judgment be GRANTED.
October 9, 2018, Ernesto M. Diaz, Jesus G. Gonzalez,
Encarnacion Romero-Alverez, Jorge A. Torres, Noe Sigfredo
Alvarado Torres, Lidia M. Adams, Ninna K. Adams, and Martha
L. Torres ("Plaintiffs") filed this lawsuit against
Rodney L. Naylor ("Defendant") alleging violations
of the Fair Labor Standards Act ("FLSA").
Plaintiffs now seek an entry of default judgment that awards
them monetary damages and attorney's fees and costs.
(Mot. Default J. at 7.)
Jurisdiction and Venue
the Court can render default judgment, it must have both
subject-matter jurisdiction and personal jurisdiction over
the defaulting parties, and venue must be proper.
Court has subject-matter jurisdiction over this action. A
federal district court has original jurisdiction when an
action involves a civil action "arising under the
Constitution, laws, or treatises of the United States."
28 U.S.C. § 1331. Similarly, 28 U.S.C. § 1337(a)
provides that "district courts shall have original
jurisdiction of any civil action or proceeding arising under
any Act of Congress regulating commerce or protecting trade
and commerce against restraints and monopolies." The
FLSA itself also states that any action to recover unpaid
minimum or overtime wages may be maintained "in any
Federal or State court of competent jurisdiction." 29
U.S.C. § 216(b). Since this action arises from a law of
the United States, the FLSA, and further arises from an Act
of Congress regulating commerce, this court has
subject-matter jurisdiction over this action pursuant to 28
U.S.C. §§ 1331 and 1337.
Court has personal jurisdiction over Defendant in this
action. For personal jurisdiction over a defendant, the
standards of both federal due process and the forum
state's long-arm statute must be satisfied. See Tire
Eng'g & Distrib.. LLC v. Shandong Linglong Rubber
Co.. 682 F.3d 292, 301 (4th Cir. 2012). Federal due
process permits personal jurisdiction where a defendant has
"certain minimum contacts with [the forum state] such
that the maintenance of the suit does not offend
'traditional notions of fair play and substantial
justice.'" Int'l Shoe Co. v.
Washington. 326 U.S. 310, 316 (1945) (quoting
Milliken v. Mever. 311 U.S. 457, 463 (1940)).
Virginia's long-arm statute, Virginia Code §
8.01-328.1, "extends the jurisdiction of its courts as
far as federal due process permits." ePlus Tech.,
Inc. v. Aboud. 313 F.3d 166, 176 (4th Cir. 2002). With
federal due process and Virginia's long-arm statute
requiring the same standards, essentially only one personal
jurisdiction inquiry is required. See id. The
inquiry to find personal jurisdiction requires either
specific jurisdiction "based on conduct connected to the
suit" or general jurisdiction based on "continuous
and systematic" activities in the forum state. Tire
Eng'g & Distrib.. 682 F.3d at 301 (quoting
ALS Scan. Inc. v. Dig. Serv. Consultants. Inc.. 293
F.3d 707, 711 (4th Cir. 2002)). As stated in the Complaint,
Defendant regularly conducted business in the Commonwealth of
Virginia. (Compl. ¶¶ 10-12.) Therefore, Defendant
has maintained sufficient contact with Virginia based on
conduct connected to this case to allow the Court to have
personal jurisdiction over Defendant. Additionally, venue is
proper in this Court pursuant to 28 U.S.C. § 1391.
(Id. ¶¶ 20, 24-32; Mot. Default J., Ex.
these reasons, the undersigned recommends a finding that this
court has subject-matter jurisdiction over this action, that
this court has personal jurisdiction over Defendant, and that
venue is proper in this court.
Service of Process
the Court can render default judgment, it must be satisfied
that all defaulting parties have been properly served. As a
general rule, a defendant must be served with the summons and
complaint filed with a federal court. See FED. R. Civ. P. 4.
However, various avenues exist to serve a defendant.
Rule of Civil Procedure 4(e)(1) allows service on an
individual within a judicial district of the United States
pursuant to state law for service in the state where the
district court overseeing the lawsuit sits or state law for
service in the state where service is made. Under Virginia
law, a plaintiff may make service of process on a nonresident
of Virginia via the Secretary of the Commonwealth if a court
in Virginia can exercise personal jurisdiction over the
defendant. Va Code. § 8.01-329(A). In order to properly
effectuate service on the Secretary, a plaintiff must file an
affidavit with the court, "stating either (i) that the
person to be served is a nonresident or (ii) that, after
exercising due diligence, the party seeking service has been
unable to locate the person to be served. In either case,
such affidavit shall set forth the last known address of the
person to be served." Id. § 8.01-329(B).
Service via the Secretary of the Commonwealth is
"effective on the date when service is made on the
Secretary." Id. § 8.01-329(C).
Defendant is a non-resident of the Commonwealth of Virginia.
(Compl. ¶ 10.) Plaintiffs followed the required steps to
effectuate service on Defendant via the Secretary of the
Commonwealth. (Dkt. 3.) Additionally, Plaintiffs have
sufficiently alleged that this Court has personal
jurisdiction over Defendant. Therefore, based on the
foregoing, the undersigned recommends a finding that
Defendant was properly served with the summons and complaint.
Grounds for Default Judgment
entry of default judgment may be appropriate when a defendant
has failed to appear in a case. See Fed.R.Civ.P. 55. To date,
Defendant has not appeared or otherwise participated in these
proceedings. On November 19, 2018, Plaintiffs filed their
Request for Entry of Default (Dkt. 4), seeking entry of
default for Defendant. On that same day, the Clerk of the
Court issued the Entry of Default (Dkt. 5) for Defendant. On
November 26, 2018, Plaintiffs filed their Motion for Default
Judgment. The undersigned U.S. Magistrate Judge then held a
hearing on Plaintiffs' Motion for Default Judgment on
January 4, 2019, at which no representative for Defendant
appeared. Finding the matter uncontested, the undersigned
took the matter under advisement to issue this Report and
FINDINGS OF FACT
full review of the pleadings and the record in this case, the
undersigned finds that Plaintiffs have established the
is a resident of Indiana and operated a business known as
Naylor & Sons Environmental Inc. (Compl. ¶ 10.)
Naylor & Sons Environmental Inc. was not authorized to
operate in the Commonwealth of the Virginia but did so
anyway. (Id. ¶¶ 10-11.) At all relevant
times, Naylor & Sons Environmental Inc. generated gross
revenues exceeding $500, 000.00. (Id. ¶ 18.)
Defendant consistently advertised and solicited business
outside the State of Indiana and provided services within the
Commonwealth of Virginia. (Id. ¶ 17.) On
October 10, 2017, Naylor & Sons was dissolved by the
Indiana Secretary of State Business Services Division.
(Id. ¶ 10.)
are current and former employees of Defendant.
Q± ¶ 9.) Seven (7) Plaintiffs are
residents of Virginia ("Virginia Plaintiffs") while
Plaintiff Ernesto M. Diaz is a resident of Maryland.
(Id. ¶¶ 1-8.) Plaintiffs performed
cleaning services on behalf of Defendant, (Id.
¶¶ 9, 16), and did so as hourly employees
(Id. ¶¶ 16, 21). Plaintiffs engaged in
services originating outside the Commonwealth of Virginia.
(Id. ¶ 19.) Defendant had knowledge of the
hours worked by Plaintiffs. (Id. ¶ 23.) From
May through August 2018, Plaintiffs were not paid even though
Defendant continued to operate his cleaning business.
(Id. ¶¶ 23-24.) During this period of
unpaid work, Virginia Plaintiffs continued to perform work
for Defendant at the property located at 766 N Howard St.,
Alexandria, VA 22304. (UL ¶¶ 25-26,
28-32.) At the N Howard property, Jesus G. Gonzalez performed
175 hours of unpaid labor; Encarnacion Romero-Alverez
performed 245 hours of unpaid labor; Jorge A. Torres
performed 175 hours of unpaid labor; Plaintiff Noe Sigfredo
Alvarado Torres performed 175 hours of unpaid labor; Lidia M.
Adams performed 130 hours of unpaid labor; Ninna K. Adams
performed 160 hours of unpaid labor; and Martha L. Torres
performed 130 hours of unpaid labor. (Id.)'
this same period, Plaintiff Ernesto M. Diaz also went without
pay while continuing to perform work for Defendant at the
property located at 6060 Tower Court, Alexandria, VA 22304.
Qd ¶¶ 3, 27.) He performed 720 hours of unpaid
labor, of which 640 hours were non-overtime. (Diaz Mot.
Default J. ¶ 3, Ex. 1.) Plaintiff Diaz began working for
Defendant in February 2017. (Id. ¶ 2, Ex. 1.)
He worked eight (8) hours a day Monday through Friday,
arriving at 6:00 a.m. and leaving at 3:00 p.m. (Id.)
Diaz also worked five (5) hours on Saturday, thereby working
a total of forty-five (45) hours a week. (Id.) From
April 2017 to April 2018, a period of seventy-six (76) weeks,
Diaz was paid an hourly wage of $11/hour but was not paid any
overtime premiums and only received pay for
forty-two-and-half (42.5) hours of work per week.
EVALUATION OF ...